Appeal from judgments of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, of conviction of both appellants for conspiracy to possess with intent to distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1) (Count One), and possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two), and conviction of appellant Delligatte for unlawfully carrying a firearm during the commission of the foregoing felonies, 18 U.S.C. § 924(c)(2) (Count Three).
Present: Hon. J. Joseph Smith, Hon. James L. Oakes, Hon. Ellsworth A. Van Graafeiland, Circuit Judges.
Appellants argue that the district court improperly admitted into evidence statements made by coconspirator John Cataraso during the course and in furtherance of the conspiracy, specifically an oral statement to Agent Forteza of the Drug Enforcement Administration that Cataraso's "connection" was appellant Masucci, who manages the "Ring Around the Collar" Laundromat, and a written statement of the address and telephone number of the laundromat with the name "Bob Mu" thereon. We find, however, that there was ample nonhearsay evidence of appellant Delligatte's participation in the conspiracy and that there was sufficient evidence independent of Cataraso's hearsay statements of appellant Masucci's participation based upon his driving his automobile back and forth to Catarosa's house at the time of the transfer of the narcotics, Masucci's suspicious behavior in the vicinity of the crime which would have permitted the jury to infer that he was a lookout during the conduct of the narcotics transaction, and his subsequent flight.
Appellants also argue, following a suggestion of the district court, that even if these statements might be admissible generally they should have been excluded because there was no independent proof of appellants' participation in the conspiracy at the time that the statements were made but only proof of subsequent participation. However, Catarosa made a telephone call on September 7 to his "connection," the result of which was that Catarosa agreed to enter into the sale of a kilogram of cocaine to the agent. Based upon appellants' subsequent conduct, the jury could properly infer that that conversation was with one of the appellants. See generally United States v. Gypsum Co., 333 U.S. 364, 388-93 (1948); United States v. D'Amato, 493 F.2d 359 (2d Cir.), cert. denied, 419 U.S. 826 (1974).
Appellant Masucci also claims that introduction of Catarosa's statements may have violated his rights under the confrontation clause of the Sixth Amendment pursuant to United States v. Puco, 476 F.2d 1099 (2d Cir.), cert. denied, 414 U.S. 844 (1973). We note, however, that appellant did not raise the Puco point at trial; and even if he had, the slip of paper with the address and telephone number of the laundromat and the name "Bob Mu" would certainly constitute sufficient indicia of reliability under Puco itself. 476 F.2d at 1107. Puco does not stand for the proposition that before the statement may be admitted the declaration must be found to be neither "crucial" to the Government's case nor "devastating" to the defense. Id.
Appellant Delligatte argues that the court's charge was unbalanced and contrary to the suggestions made in United States v. Floyd, 555 F.2d 45, 47 n.4 (2d Cir.), cert. denied, 434 U.S. 851 (1977). See also United States v. Vega, 589 F.2d 1147, 1154 (2d Cir. 1978); United States v. Rucker, 586 F.2d 899, 903-04 (2d Cir. 1978). The charge at bar was by no means as unbalanced a charge as treated in Floyd, Vega, and Rucker, supra, inasmuch as the court said that "the same tests" apply to the defendant as to any other witness. Cf. United States v. Schlesinger, No. 78-1375, slip op. 2265, 2275 (2d Cir. Apr. 19, 1979) ("'a defendant's testimony is to be judged in the same way as any other witness'" (emphasis added). But crucial here is that the court asked defense counsel to supply him with any additional balancing language that he wanted included in the charge, and counsel did not do so.